Excerpt:.....sued the management and applied for an interim direction requiring the defendant to allow the union representative to attend the enquiry proceedings. the trial court refused the interim injunction, on the ground that the plaintiffs had not made out a prima facie case, thereforee, and that no irreparable injury would be caused to them by the absence of a union representative. the appellate court below confirmed the trial court's order in the instant revision petition filed by the petitioners against that order, it was held as follows:-; (1) when called upon to consider if the plaintiff has a 'prima facie' case and should, thereforee, have the interim protection of the court, the function of the court is to determine the limited question if the allegations in the plaint and any..........and sought from the trial court an interim direction requiring the management to allow the union representative to sit during the enquiry proceedings until the decision of the suit. the interim direction sought by them was refused and the order has since been upheld by the first appellate court. according to the trial court, the plaintiffs did not have a prima facie case for the reasons that the existence of the agreement of 1958 was disputed; that in any event, the minutes did not constitute an agreement; that assuming that it amounted to an agreement, it could not override the provisions of the standing orders, which were statutory in character; and that the agreement, if any, incorporated in the minutes, stood superseded by the standing orders which were of a later date. the.....

Judgment:

H.L. Anand, J.

(1) This petition under section 115 of the Code of Civil Procedure by two employees of the Statesman Limited raises some interesting questions as to the scope of the functions and the extent of the powers of the Court when called upon to consider if the plaintiff has a prima facie case, as to the powers of this Court on its revisional side where the courts below refuse to grant interim injunction on the ground that the plaintiff did not have a prima facie case and as to whether there is anything in the provisions of the Industrial Employment Standing Orders, Act, 1946, and the Standing Orders certified under that which may bar the claim of an industrial employee to enforce an agreement purporting to confer additional benefits on him merely because the same are not incorporated .by a modification of the standing orders.

(2) Petitioner No. 2 is a working journalist while petitioner No. 1 , respondents No. 2 and 3 are non-working journalist employees of the Statesman Ltd. Ail the four employees are being proceeded against on certain charges and the domestic enquiries were pending when they made a claim that in terms of an agreement between the management and the employees incorporated in the minutes of certain meetings between the representatives of the employees and the Resident Director of Statesman Ltd. said to have been held on May 16, 20 and 22, 1958, they were entitled to the presence of a representative of the Union at the time of the departmental enquiry, even though, and this fact is not in dispute, the standing orders certified under the Act, both in respect of the working journalists and the non-working journalists, confer a right on the employees of being represented by a co-worker. On the claim being repudiated the employees filed a suit, out of which the present petition has arisen, seeking to enforce the aforesaid agreement and sought from the trial court an interim direction requiring the management to allow the union representative to sit during the enquiry proceedings until the decision of the suit. The interim direction sought by them was refused and the order has since been upheld by the first appellate court. According to the trial court, the plaintiffs did not have a prima facie case for the reasons that the existence of the agreement of 1958 was disputed; that in any event, the minutes did not constitute an agreement; that assuming that it amounted to an agreement, it could not override the provisions of the standing orders, which were statutory in character; and that the agreement, if any, incorporated in the minutes, stood superseded by the standing orders which were of a later date. The trial court further held that no irreparable injury could possibly be caused to the interest of the plaintiffs if the alleged right to the presence of a union representative was denied to them. While upholding the order the first appellate court held that the minutes of the meeting referred to above could not be termed 'to be a contract' ; that there was nothing on the record to show that the right claimed by the plaintiff had ever been recognised by the management in the standing orders; and that the standing orders had the effect of superseding any such agreement.

(3) On behalf of the petitioners it is urged that in considering the question whether the plaintiffs had a prima facie case or not the courts below have clearly transgressed the limits of the functions- of a court while dealing with a claim for an, interim injunction in that the courts below have, instead of finding if the plaintiffs had raised questions in the suit which required consideration, gone into and had virtually decided the questions. It was further urged that the questions posed by the plaintiffs whether the minutes of the meeting between the management and the representatives of the employees constituted a binding agreement or not and, if so, whether the plaintiffs were entitled to the presence of a unn representative at the time of the domestic enquiry and as to the effect of the certified standing orders on the aforesaid agreement, were substantial questions. of fact and law and constituted a prima facie case for the plaintiff, which, on a proper application of the law, should have been held as entitling the plaintiffs to interim direction sought by them. It is further urged that the conclusion of the trial court that by refusal to permit the union representative to be present at the domestic enquiry no irreparable injury would be caused was wholly erroneous.

(4) On the other hand the orders of the courts below were sought to be justified on behalf of the management not only on the grounds on which they purport to be based but also with reference to, what appeared to the Management to be, the true legal position of a workman's right to the presence of a union representative at the departmental enquiry. A plea was also raised that this Court would not be entitled to interfere in the present proceedings with the discretionary orders of the Courts below refusing to grant the injunction to the petitioners. A plea was also made that the discretionary relief should not be granted to the plaintiffs because they had not come to the Court with clean hands in that the petitioners, particularly petitioner No. 2, a working journalist, had been instrumental in delaying domestic enquiries against him; as indeed, a large number of employees of the management on the ground that he was not available to attend to the proceedings.

(5) The first question that must be considered is as to the true meaning of the expression 'prima facie' and as to the scope of the proceedings before the Court, when, called upon to consider if the plaintiff has a prima facie case for the grant of any interim protection. The terms 'prima facie' and 'prima fade case' do not have any statutory definition but have been subject matter of judicial interpretation. According to the Shorter Oxford English Dictionary, 3rd edition, the term 'prima facie' means : at first sight; on the face of it; based on first impression. According to this dictionary 'prime facie case' would be synonymous with a case 'resting on prima facie evidence'. According to Halsbury (Halsbury's Law of England, 3rd edition. Vol. 15, para 506) 'prima facie evidence' is 'evidence which, if accepted by the tribunal, establishes a fact in the absence of acceptable evidence to the contrary. Unless a particular enactment otherwise provides, sufficient evidence usually means prima facie evidence, which if there is no contradictory evidence, may establish a fact'. According to Wharton (Wharton's Law Lexicon, 14th edition, page 798) prima facie evidence is that 'which not being inconsistent with the falsity of the hypothesis nevertheless raises such a degree of probability in its favor that it must prevail if it be credited by the jury unless it be rebutted, or the contrary proved. Conclusive evidence, on the other hand, is that which excludes or at least tends to exclude, the possibility of the truth of any other hypothesis than the one attempted to be established.'

(6) In 1865 L.R. 1 PC 50, the Judicial Committee was called upon to consider the propriety of granting an injunction and observed that 'the real point before us upon this appeal is not how these questions ought to be decided at the hearing of the cause but whether the nature and difficulty of the question is such that it was proper that the injunction should be granted until the time for deciding them should arise.' It was further observed that for the purpose of granting , injunction it was sufficient 'if there be a question upon the point proper to be determined upon the hearing of the cause.'

(7) In Air 1926 Lah 589, that High Court held that in determining whether the plaintiff had a prima facie case it was not open to the Court to examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed, because such an exercise will amount to ore-judging the case on merits and observed that all that a court was entitled to do at that stage was to see if the person seeking the intervention of the courts had a case which required consideration and if it was not bound to fail by virtue of some apparent defect.

(8) In : AIR1951Pat469 , a Division Bench of that Court held that while considering the question regarding the propriety of granting the injunction the court was to consider whether there was a bona fide contest between the parties and held that where there was a fair and substantial question to be gone into it was not necessary that the court should further examine the qutstion in dispute or anticipate the decision on it. A somewhat similar conclusion was arrived at by a Single Judge of this Court in 1971 R.L.R. 84. In C.R. 248 of 1973 decided by me. on May 23, 1973(5), I had looked at the question in more or less the same manner and I see no reason to hold to the contrary.

(9) It thus follows that when called upon to consider if the plaintiff has a prima facie case and should, thereforee, have the interim protection of the court, the function of the court is to determine the limited question if the allegations in the plaint and any material that may be available discloses a fair question of law or fact which would deserve consideration and the case sought to be set-up by the plaintiff is neither frivolous nor suffers from any fatal infirmity or be vitiated by mala fides. In such an enquiry it is not open to the court to submit the material or the question to closer judicial scrutiny either for the purpose of determining how the court would look at it ultimately at the trial or to test if the plaintiff was bound to succeed in the suit. Such an exercise would be a clear transgression of the limited function of the court and would, in a limited sense, be in excess of its jurisdiction besides constituting a material irregularity in the exercise of jurisdiction. In such a situation this Court would not only be entitled to interfere both u/s 115 Civil Procedure Code ., as indeed, under Art. 227 of the Constitution of India but would be under a duty to do so.

(10) On an examination of the circumstances of this case in the light of the aforesaid principles it would be seen that the plaintiffs came to the court for an interim protection on the picas that by an agreement between the Management and the workman, as incorporated in the minutes of the meetings held between their respective representatives, a right had been conferred on the workmen of the presence of a union representative in all departmental proceedings, and that the said right not being in derogation of the standing orders but in addition to the provisions contained in the standing orders could be enforced even though it was not certified by incorporation in the standing orders. The claim was resisted on the ground that no such agreement existed; that the minutes of the meetings did not constitute an agreement in law; that any such agreement had no legal validity in view of the provisions of the standing orders, which merely conferred on the workmen the limited right of representation through a co-worker; and that the right conferred by the agreement, if any, stood superseded on the standing orders being certified. It was also urged that unless the additional right claimed to have been conferred had been duly incorporated in the standing orders by an amendment thereof it could not bind the parties.

(11) Now, it is well settled that a domestic enquiry against an industrial worker must conform to the requirements of the well established principles of natural justice and any such enquiry to be valid must ensure that the workmen affected had been granted a reasonable opportunity of being heard. It is axiomatic that, whether in the domestic enquiry or in the labour courts or tribunals or indeed in any litigation in any court, the fight between the management, on the one hand, and the workmen, on the other, is, by and large, a battle between unequals. Section 36 of the Industrial Disputes Act legislatively recognises this when it provides that a legal practitioner can appear for a party in the proceedings under the Act only by the permission of the authority concerned and that too with the consent of the other side. This was obviously intended to prevent the managements taking advantage of the vast resources available to them in the legal battles between the management and the workmen and to minimise, as far as possible, a likely prejudice to the vital interests of workmen, who, in spite of their trade unions, are still in a comparatively weaker position to represent their point of view before the various authorities. It has, thereforee, been recognised that in all domestic enquiries against industrial workers, the workmen have the right to be represented by a co-worker even though they have no right to representation through a legal practitioner or even a trade union worker, unless of course such a right of any other additional right is conferred on the workman by the standing orders. It has, however, been recognised that by agreement the management may confer any additional right of representation on the workmen in addition to those ordinarily recognised in industrial law.

(12) While it is not open to this court at this stage to express any opinion on the various questions raised by the petitioners before the trial court or to indicate as to how the trial court should eventually look at the questions at the trial or how this court is inclined to look at the questions at this stage, a cursory examination of the questions raised by the petitioners leaves no manner of doubt that the questions, both of fact and law, deserve consideration and the case of the petitioners could not be said to suffer from any fatal infirmity. In support of the first question that an agreement was arrived at in the meetings held between the representatives of the management and the employees the petitioners have placed on the record a document purporting to be the minutes of the meetings which purport to have been signed on behalf of the unions and by a Director of the Company. This material would be sufficient for a conclusion that the question whether there was an agreement or not is not a frivolous question but is a question that needs examination and would obviously necessary evidence before a finding can be returned in favor of the petitioners. According to the minutes, clause 3 of the same incorporates what has been described as an agreement with regard to representation in the following terms:

'ATthe time of department enquiry, the representative of the union will be allowed to present.'

The further question if the stipulation in the minutes with regard to the right, to the presence of a union representative constituted 'an agreement in law or not raises a pure question of law, as indeed, one of construction of the document. Here again, it is difficult to say on a look at the document that the contention is frivolous. It is a possible view to take of the document that it incorporates an agreement with regard to the right to the presence of a union representative. The third question, if, assuming that there was an agreement, as claimed, it had any legal validity because it had not been incorporated in the standing orders or because it may have been deemed to have been superseded by the standing orders, to my mind, raises a substantial question of law which certainly requires consideration. It is interesting to notice in this connection, and unfortunately this aspect has been overlooked by the courts below, that so far as the non-journalist employees of Statesman are concerned the standing orders are of the year 1952 while the purported agreement is of the year 1958. There would, thereforee, be some force in the contention of the petitioners that so far as the non-journalist workmen are concerned the agreement could not be deemed to have been superseded by the standing orders. The position of the journalist workmen is however, different because the standing orders in respect of journalist workmen were certified in 1966, and there would be some force in the contention of the management that by implication the provision in the agreement stood superseded. That. however, is the manner in which the court may perhaps be entitled to look at the question at the trial but it is difficult to accept the contention that the questions raised by the petitioners were frivolous or had been raised with the mala fide object of delaying the proceedings or otherwise did not deserve consideration and, thereforee, did not entitle the petitioners to an interim protection sought by them.

(13) That leaves for consideration the conclusion of the trial court that mere denial of the right of the presence of a union representative could not be conceived as causing an irreparable injury to the interests of the petitioners. In arriving at this conclusion the trial court has apparently ign red the true import of the expression 'irreparable injury' and ignored the important fact that the enquiries are normally held either by high powered executives of the management, who are conversant with the intricacies of industrial law and procedure, or by members of the legal profession, and a mere representation of the workmen by their co-workers, a majority of whom would be illiterate or semi-literate, would not by itself ensure adequate and proper representation and cases are not unknown where the domestic enquiries were reduced to a mere farce. In such an event it would be too much to say that even if a workman is dismissed after an invalid enquiry or even without an enquiry no irreparable injury would be caused to his interests because, when he ultimately succeeds in obtaining anorder of reinstatement or compensation from the Labour Court or Tribunal, he would be adequately compensated and the injury could not, thereforee, be said to be irreparable. Such a logic clearly ignores the stark reality that once a workman is thrown out o,f service it takes months for him to take the matter to the Tribunal or Labour Courts. The proceedings in the Tribunals take their own time and are very often bogged down by frivolous challenges to interlocutory orders made by the Tribunals and cases are not unknown where proceedings before the Tribunal remain stayed for months and perhaps years during the pendency of proceedings under Art. 226 of the Constitution of India. It is equally well known that even after the workman is able to gel a favorable Award the challenges to it, first in the High Court and later in the Supreme Court, normally take years and even where the workman eventually succeeds after an arduous struggle, which may extend to five years or more, it is no consolation at all because of what he has passed through during the period of forced unemploynnent or under-employment in the economic conditions obtaining today. It is, thereforee, not possible to accept the conclusion that any step which may render departmental enquiry illusory was not likely to cause irreparable injury. It is useful to remember in this context that the presence of a union representative, even though he would not be entitled to participate in the proceedings, by itself has a salutary effect. both on the management and the enquiry officer, who is essentially their nominee, and this by itself, to a large extent, ensures that the enquiry would not be rendered illusory or be reduced to a farce.

(14) However, if the petitioners are- to be given the interim protection sought by them and to which, to my mind, they are entitled, it is at the sametime necessary that the judicial protection is not misused and the domestic enquiries are not unnecessarily delayed or their proceedings are allowed to be obstructed or impeded, an apprehension to which Mr. Mathur, appearing for the management, gave full expression and made a strong plea for some safeguards being built into any order, which may be made allowing the petitioners to have the presence- of a union representative. It was particularly pointed out that once the petitioners were allowed to the benefit of the presence of a union representative, an attempt may perhaps be made to foist the same representative in all enquiries and, since a large number of enquiries were being simultaneously held, the work of the enquiries may be impeded. An apprehension was also expressed that the right to the presence f a union representative should be sufficiently regulated so as to enable the enquiry officer to order the representative to leave the venue of the enquiry, if he misbehaves or otherwise tries to interfere in or impede in the peaceful conclusion of the proceedings.

(15) Having regard to all the circumstances, I would set aside the impugned orders and direct that pending the decision in the suit, the decision of which would be expedited, the petitioners and respondents 2 and 3 would be entitled to the presence of a union representative in any domestic enquiry that may be held against them provided, however, that it would not be open to the workmen to insist on the presence of a particular representative in all enquiries or to claim an adjournment of the proceedings of the enquiry because of the non- availability of a particular representative. It would also be subject to the power of the enquiry officer to order the representative to leave the venue of the enquiry or to refuse entry to him if the representative misbehaves, interferes in the course of the enquiry or otherwise obstructs or impedes the proceedings. It is, however, hoped that the enquiry officer would exercise his discretion in these matters in a just and fair manner.